Same-Sex Couples

In 2014, the Fourth Circuit Federal Court of Appeals struck down a ruling that banned gay marriage. This ruling was then presented to the Supreme Court for review; however, the Court denied review. Accordingly, the Fourth Circuit’s opinion holding that a ban on gay marriage was unconstitutional became binding precedent for North Carolina, which is in the Fourth Circuit. As a result, same-sex marriage became legally recognized in North Carolina on October 10, 2014. Therefore, the rights and privileges of marriage were made available to same-sex married couples.

These rights and privileges include, but are not limited to:

The right to inherit from your spouse (even if your spouse does not have a will).

The right to make a claim for equitable distribution and alimony upon separation from your spouse.

The right to file taxes as a married couple (married filing jointly or married filing separately).

The right to divorce. Before North Carolina recognized gay marriage, same-sex couples married in another state were unable to get divorced in North Carolina.

Despite the fact that gay marriage is now legally recognized in North Carolina and throughout the United States, there is a lack of clarity surrounding our state’s laws related to domestic issues and same-sex couples. In addition, because North Carolina so recently began recognizing same-sex marriages, there is little relevant case law surrounding the changes in the marriage equality landscape. Consequently, same-sex couples still face challenges in securing certain legal protections.

Below is more information about various family law issues as it relates to same-sex married and unmarried couples.

Child Custody

If you and your partner are not married in North Carolina or any other state, then adopting the child of your relationship is not a possibility (at least not in North Carolina). As a result, you may have a child with whom you have no biological relationship (i.e., your partner provided the egg or sperm for conception of the child) or no legally-recognized parental relationship (i.e., you have not adopted your child). If you fall into either of these categories, it is still possible that you could be awarded custody and/or visitation with your child. However, because you are considered a non-parent, the court will first have to find that you have standing to bring a custody claim. (“Standing” means the legal right of a person to bring a particular type of legal claim.) Generally, standing is conferred by statute, and in the case of a custody claim, standing is conferred by N.C.G.S. § 50-13.1. North Carolina Courts have held that “a relationship in the nature of a parent and child relationship, even in the absence of a biological relationship, will suffice to support a finding of standing.” Ellison v. Ramos, 130 N.C. App. 389, 394 (1998). Standing for non-parents is determined on a case-by-case basis and depends upon the specific facts of your situation. Speak to a lawyer about whether you have standing to pursue a custody claim.

If you have standing to pursue a custody claim, then the court will next determine whether the biological or legally-recognized parent has taken actions which are inconsistent with his or her constitutionally protected status as a parent. Parents in the United States have constitutionally protected rights to raise their children as they see fit, which is why a non-parent seeking custody of a child from a parent has greater hurdles to overcome. North Carolina courts have found the following acts to be inconsistent with a parent’s protected status:

Unfitness of a parent

Neglect of a child by a parent

Abandonment of a child by a parent

A parent voluntarily conferring parenting rights and responsibilities upon a non-parent

This type of inconsistent act is likely to be the one applicable to cases where non-parents are seeking custody of a child. When a biological or legally-recognized parent endeavors to create a family unit and treats a non-parent as if he or she were, in fact, a parent of the child, then the court may find that the parent has acted inconsistently with his or her protected status as a parent. Examples of conduct that has been found to support this finding include:

Parties decided to start a family together and both parties were active and involved in bringing a child into the family

The child was given the last name of the non-parent, or a hyphenated last name (both parents’ last names)

The biological or legally-recognized parent held the non-parent out to others as the child’s other parent by:

Referring to the non-parent as the child’s other parent

Listing the non-parent as the child’s other parent on paperwork/forms (such as with the child’s pediatrician or the child’s school)

Allowing the non-parent to participate in making decisions of significance for the child (such as healthcare or educational decisions)

The non-parent encouraged the relationship between the child and the non-parent

Both parties executed a parenting agreement detailing their roles as parents of the child

Both parties provide financial support for the child

Only if a court finds that a parent has acted inconsistently with his or her protected status can the court then apply the “best interest of the child” standard to make a determination regarding what custodial arrangement is in the best interests of the child. While a non-parent seeking custody of a child from a biological or legally-recognized parent has an uphill battle, it is certainly possible to achieve. You should speak to an experienced family law attorney about whether you have grounds to seek custody of your child despite the fact that you are not a biological or legally-recognized parent.

If you and your spouse are married, then the parent who has no biological relationship to the child may adopt the child to become a legally-recognized parent. This is what is known as a stepparent adoption. You are eligible to petition for a stepparent adoption if:

Your spouse, who is the parent of the child, has legal and physical custody of the child, and the child has resided primarily with the parent and stepparent in the six months immediately preceding the filing of a petition for adoption;

Your spouse, who is the parent of the child, is deceased or incompetent but, before dying or being adjudicated incompetent, had legal and physical custody of the child, and the child has resided primarily with the stepparent in the six months immediately preceding the filing of a petition for adoption; or

For cause, the court may permit a stepparent who does not meet the above requirements to file a petition for adoption. N.C.G.S. § 48-4-101

Keep in mind, however, that children can have only two parents at most. If the child you seek to adopt is your spouse’s child from a prior relationship, and there is a second parent out there who has a biological relationship to the child, you will not be permitted to adopt the child unless the other biological parent’s parental rights are terminated, or that parent consents to the adoption. If your spouse is the only biological or legally-recognized parent of the child, then your spouse must consent to the adoption. Also, if the minor child you seek to adopt is 12 years or older, then the child must also consent. N.C.G.S. § 48-4-102

If you are married to the biological or legally-recognized parent of the child, but you have not adopted the child, then you are not considered a parent for purposes of North Carolina custody laws. Refer to the section above regarding how non-parents may gain custody of a child.

Child Support

If you are a biological or legally-recognized parent of the child, then you have a legal obligation to provide financial support for the child and you may be ordered to pay child support to the other parent (or the other parent may be ordered to pay child support to you), depending on the custodial arrangement and other specific facts of your case.

If you are not a biological or legally-recognized parent of the child, but you are awarded custody and/or visitation of the child, then you may be ordered to pay child support to the other parent (or the other parent may be ordered to pay child support to you), depending on the custodial arrangement and other specific facts of your case. A qualified family law attorney can advise you on your rights and obligations regarding financial support of your children.

Property Distribution

In the event of a separation after marriage, married persons, whether in a same-sex or heterosexual marriage, have the right to make a claim for equitable distribution (i.e., if you and your spouse cannot come to an agreement regarding how your property should be divided between you, then you may have a judge make that decision for you).

For unmarried same-sex couples, property considerations need to be carefully thought out in advance. Unlike traditional married couples who can petition the court for equitable distributionof their property, there is no such law applicable to couples who are not married. If you and your partner are not married, but you already own or plan to own property together (or perhaps you have joint debt), entering into a written agreement regarding that property would be beneficial.

Alimony

Same-sex married couples have the same marital rights and privileges as heterosexual couples. If a couple decides to separate, then either party has the right to make a claim for alimony.

Unmarried couples, including men and women who are in same-sex relationships, do not have the right to make a claim for alimony if the relationship dissolves.

The attorneys at Hatcher Law Group advise same-sex couples, married and unmarried, in all family law matters, including:

Divorce

Equitable distribution of assets and debts

Alimony and post-separation support

Child custody issues

Stepparent adoption

Parenting agreements

Property agreements

Premarital agreements

Name changes

The legal challenges impacting same-sex couples represent an evolving area of law. No matter how you define “family,” issues such as child custody, property division and financial support can be difficult to understand without the guidance of an experienced family law attorney. Regardless of a client’s sexual orientation or gender identity, our attorneys recognize and respect the unique, individual needs associated with every family law matter. Contact us to schedule a consultation with one of our attorneys.